Parties supporting the plaintiff in Facebook Inc. v. Duguid file briefs focusing on the original legislative intent of the 1991 TCPA. Editor’s note: This article is available for members only.
10/30/2020 14:00
Late last week, the U.S. Supreme Court received seven amicus briefs supporting respondent Noah Duguid, the lead plaintiff in Facebook inc. v. Duguid. The briefs support arguments in favor of an expansive reading of the definition of an automatic telephone dialing system (ATDS).
Oral arguments in the case have been set for Dec. 8.
Duguid filed his principal brief with the court on Oct. 16. In the Supreme Court, briefs must be filed within seven days of the party they support. Accordingly, the due date for amicus briefs supporting Duguid were due on Oct. 23.
As ACA International previously reported, Duguid’s principal brief urges the court to adopt an expansive reading of the statutory definition of the term ATDS set forth in the Telephone Consumer Protection Act, which states that ATDS means: “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.”
The seven amicus briefs filed in support of Duguid reflect arguments and perspectives from 21 Democrats in Congress and 37 state attorneys general (plus the District of Columbia).
Summaries of Respondents’ Briefs
National Consumer Law Center (NCLC): The NCLC, Consumer Federation of America and Consumer Reports argued that the consent requirement properly balances individual privacy interests while permitting companies to use autodialing technology. NCLC explained that Facebook’s interpretation of the ATDS definition would undermine the consent requirement by greatly limiting the kinds of calls that are restricted. NCLC argued that the TCPA is not out of date and that smartphones would not fall under the broad ATDS definition that NCLC supports. NCLC also asserted that Facebook’s interpretation of the ATDS “would render the TCPA’s restriction on autodialing meaningless.”
Electronic Privacy Information Center (EPIC) and 22 technical experts and scholars asserted that the TCPA “is one of the few laws that gives individuals direct control over companies’ use of their data.” EPIC argued that Congress intended the TCPA to prevent privacy harms to consumers and stated that the text of the TCPA supports a broad interpretation of the ATDS definition in order to achieve that privacy goal.
Congressional Amici: Twenty-one congressional Democrats argued that a narrow reading of the TCPA to exclude dialing from databases “would reverse decades of precedent and gives a green light to telemarketers and scammers who will suddenly be free to initiate billions of automated calls to Americans.” They explained that Congress intended for the definition of ATDS to cover both systems that dial numbers stored in a list or database and systems that random or sequentially generate numbers. They urged the Supreme Court to affirm the 9th Circuit as consistent with the language of the TCPA and the context of dialing systems that Congress meant to address when it enacted the TCPA. The members of congress who participated in the filing of the congressional amicus brief were: Sen. Edward J. Markey (D-Mass.); Sen. Robert Menendez (D-N.J.); Sen. Ben Cardin (D-Md.); Sen. Jeff Merkley (D-Ore.); Sen. Richard Blumenthal (D-Conn.); Sen. Elizabeth Warren (D-Mass); Sen. Tammy Baldwin (D-Wisc.); Sen. Sheldon Whitehouse (D-R.I.); Sen. Ron Wyden (D-Ore.); Sen. Sherrod Brown (D-OH); Sen. Tom Carper (D-Del.);. Rep. Anna G. Eshoo (CA-18); Rep. Doris Matsui (CA-06); Rep. Tony Cárdenas (CA-29); Rep. Jerry McNerney (CA-09); Rep. Jackie Speier (CA-14); Rep. Jamie Raskin (MD-08); Rep. Alcee L. Hastings (FL-20); Rep. Ed Case (HI-01); Rep. Bobby L. Rush (IL-01); Rep. Marc A. Veasey (TX-33).
State Attorneys General and the District of Columbia (“states”): The states asserted that Duguid’s reading of the ATDS definition is the “only” reading consistent with the ordinary meaning of the words “store” and “produce” in the statute. The states explained that state statutes that defined the term ATDS in 1991 included systems that automatically dial from a stored list of numbers and that Congress meant to supplement these preexisting state laws. The states argued that Facebook’s interpretation would hinder state enforcement efforts by limiting the universe of cases in which states can pool resources and bring enforcement actions across multiple states or alongside the federal government. The states that participated in the amicus filing were: North Carolina, Indiana, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin, and the District of Columbia.
Main Street Alliance (MSA): MSA pointed out that small businesses also receive robocalls and, unlike consumers, cannot ignore unfamiliar calls because the call may be legitimate. MSA asserted that Facebook’s interpretation of the ATDS definition would permit more unwanted robocalls and undermine the purpose of the TCPA.
McCurley & DeForest: John McCurley and Dan DeForest, plaintiffs in a TCPA class-action suit against Royal Seas Cruises, urged the Supreme Court to affirm the 9th Circuit’s ruling in Facebook. McCurley and DeForest explained that autodialer technology (which they define as a system that has the capacity to automatically dial phone numbers en masse, without human intervention) existed prior to the enactment of the TCPA and that Congress enacted the TCPA in response to these systems. They argued that the legislative history of the TCPA and FCC precedent indicate that systems capable of dialing numbers from a stored list are autodialers.
Dr. Henning Schulzrinne: Schulzrinne agreed with Duguid that the 9th Circuit’s holding constitutes a “plain reading” of the TCPA. He asserted that inclusion of autodialers that store numbers is “essential” to protect consumer privacy. He argued that Congress was aware that autodialers could call from stored number lists and intended to include these systems when it enacted the TCPA.
Background
Duguid, in a class-action complaint, claimed that Facebook sent him—and a class of similarly situated individuals—“sporadic login-notification text messages . . . using an ATDS” to notify them that an unrecognized device or web browser had accessed their Facebook accounts. He alleged receiving such notifications, despite not having a Facebook account or consenting to receive alerts from the company, violated the TCPA, ACA previously reported in Collector magazine. The consumer claimed he repeatedly attempted to cancel the alerts, but the notifications continued. Facebook challenged the adequacy of the consumer’s allegations and took issue with the TCPA’s constitutionality, claiming it violates the First Amendment.
A California district court dismissed the case, saying that the consumer inadequately alleged that Facebook sent its messages using an autodialer—a prerequisite for TCPA liability. On appeal, in October 2019, a 9th Circuit panel reversed the district court’s decision, ruling that Duguid’s allegations were sufficient. However, addressing the TCPA’s constitutionality, the appeals court said the 2015 TCPA amendment allowing an exception for debt collection calls for debt owed to or guaranteed by the U.S. government is unconstitutional.
In July, the Supreme Court granted a Writ of Certiorari in the case, ACA previously reported. The case presents two questions: (1) Whether the TCPA’s prohibition on calls made using an ATDS is an unconstitutional restriction of speech and, if so, whether the proper remedy is to broaden the prohibition to abridge more speech, and (2) whether the definition of an ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”
Much of the argument in the case focuses on the decision from the U.S. Court of Appeals for the 9th Circuit case, Marks v. Crunch San Diego LLC, which resulted in a ruling that an ATDS includes dialing equipment that merely has the capacity to store numbers and dial them automatically, expanding the definition broadly to include anything coming from a list.
ACA International Response
In a brief filed in September, ACA and industry trade groups argued in favor of Facebook’s appeal that the Marks decision overlooks the TCPA’s history and context and violates the First Amendment by extending the capacity component of an ATDS to smartphones.
Duguid’s argument also highlights that Congress intended both “store” and “produce” to have meaning in the statute and in response to consumer complaints about robocalls; allowing callers to use a system that dials stored numbers would counter Congress’s goals.
Facebook’s appeal in the case, set to be heard by the U.S. Supreme Court in oral arguments Dec. 8, could have a significant impact on defining what is considered an ATDS under the TCPA.
Petitioners in Facebook Inc. v. Duguid also turned in briefs in the case in September, notably with support from the U.S. government of a narrow interpretation of the TCPA and the definition of an ATDS.
The government’s brief from the U.S. Department of Justice argues that the judgment by the U.S. Court of Appeals for the 9th Circuit should be reversed and challenges the 9th Circuit decision in Marks v. Crunch San Diego LLC.
The government’s brief also notes that, after the decision in ACA International v. FCC and pending reconsideration of the ATDS definition in the TCPA by the FCC, “there is consequently no current FCC interpretation to which a court could potentially defer” and that Congress did not “write a blank slate when it enacted the TCPA.”
Facebook also filed a brief in the case Sept. 4.
Related content from ACA International:
ACA International Joins Amici Brief in Landmark SCOTUS Autodialer Case
Respondent’s Brief in SCOTUS TCPA Case Urges Court to Adopt Broad Definition of ATDS